Brown v. Brown, 47687
| Decision Date | 08 November 1975 |
| Docket Number | No. 47687,47687 |
| Citation | 218 Kan. 34,542 P.2d 332 |
| Parties | Martha A. BROWN, Appellant, v. Ronald B. BROWN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Appellate jurisdiction is conferred by statute and in the absence of compliance with statutory rules an appeal should be dismissed.
2. The entry in his trial docket by a trial judge of minutes reflecting in the present tense a judgment of divorce rendered in open court is tantamount to a direction to the clerk that such judgment be entered forthwith. (Following In re Estate of Penn, 216 Kan. 153, 531 P.2d 133, Syl. 4.)
3. The mere fact the court directs or consents to the preparation of a journal entry is not an order that its judgment is not effective until the journal entry is prepared and filed. If the effective date of a judgment is to be delayed until the filing of a journal entry, the court must clearly and specifically make an order to that effect.
4. In an action for divorce and other relief, the record is examined and it is found the notice of appeal was not filed within thirty days of any of the dates judgments were entered by the trial court; therefore, jurisdiction is denied and the appeal is dismissed.
Edward J. Chapman, Jr., Leavenworth, argued the cause and was on the brief for appellant.
Louis A. Silks, Jr., Shawnee Mission, argued the cause and was on the brief for appellee.
This is an appeal by plaintiff-appellant, Martha A. Brown, from the judgment of the trial court granting her petition for divorce from defendant-appellee, Ronald B. Brown, on the ground of incompatibility. Plaintiff contends the trial court erred in its decision as to the division of property and as to the award of alimony.
Prior to reaching the merits of this controversy, we are faced with defendant's argument, both oral and written, that this appeal should be dismissed for failure of plaintiff to file a notice of appeal within thirty days of the entry of judgment. Plaintiff did not file a reply brief to meet defendant's contention, although she orally argued the case should be heard on its merits. In order to dispose of this issue we will attempt to reconstruct the procedural history of the action.
On July 7, 1972, Martha A. Brown filed a petition for divorce from her husband, Ronald B. Brown, in the district court of Leavenworth County, Kansas. The case was heard on May 18, 1973, and after receiving the evidence the trial court granted plaintiff a divorce and awarded her custody of the three minor children. At that time the trial judge made the following entry in his docket:
'Parties appear in person and by attorneys; trial, parties' evidence; Decree of Divorce to plaintiff on ground of incompatibility, not to take effect as regards the rights of remarriage until sixty days from this date; plaintiff awarded care, custody and control of minor children of parties, namely Ronda L., born 7-28-60, Gerald A., born 2-21-62, and Steven R., born 2-19-65: defendant temporarily to continue to pay support for said children at the rate of $150.00 per month; father to have reasonable and seasonable rights of visitation at the home of children and the children to visit him; balance of the issue involved taken under consideration until 2:00 p. m. May 25, 1973.'
Immediately thereafter, the clerk of the district court entered the identical recital in the court's appearance docket. The remaining issues for disposition were taken under advisement by the trial court until May 25, 1973, at which time the trial judge issued the following order in his docket, setting forth the awards for alimony and child support and for division of property:
'Parties appear in person and by attorneys for decision on division of property and alimony and child support; defendant ordered to pay as support for said children the sum of $15.00 per child per week through the Clerk of the Court; plaintiff awarded as her separate property the household goods and furnishings of the parties and 1969 Oldsmobile 88; defendant awarded as his separate property 1968 Ford pickup and farm machinery and equipment; IRS refund check in the amount of $1360.00 and three A.T. & T. dividend checks in the amount of $71.40 each in the possession of the parties to be divided equally between the parties; defendant awarded as his separate property A.T. & T. stock of 102 shares, the farm described as the east half of the northeast quarter 20-11-22, Leavenworth County, Kansas Ans 19 U. S. Series E savings bonds in the denomination of $25.00 each; plaintiff awarded as alimony the sum of $11,000.00 to be a charge on the above real estate, payable at the rate of $25.00 per week through the Clerk of the Court so long as the plaintiff survives and is unmarried; defendant ordered to provide health insurance coverage at place of employment on children of parties; defendant to pay the debts of the parties existing at the time of trial; defendant to pay costs; parties to pay respective attorneys fees.'
The clerk of the district court once again entered verbatim on her appearance docket the order of the trial court as issued. At this hearing defendant's counsel offered to prepare the journal entry and was directed by the trial judge to do so.
On August 31, 1973, a rehearing was held to reconsider evidence as to the value of the parties' real property. On that same date the trial judge directed the clerk to enter an order on the appearance docket directing that the original order of May 25, 1973, be adhered to and that the money withdrawn by plaintiff from defendant's bank account be replaced. The appearance docket shows the following entry for that date:
'Ordered that the original order will be adhered to, and the sum of money plff. withdrew from the...
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